Going Too Far With The Hidden Camera?

The hidden television camera, symbol of an aggressive approach to broadcast newsgathering, can also become the centerpiece of a lawsuit. Its use is, by definition, an intrusion that raises ethical questions. But the costlier problems arise when a court gets involved.

In recent weeks, CBS and its lawyers have been trying to fight off a challenge in the courts of South Dakota and the U.S. Supreme Court. The network's two minutes of videotape filmed secretly inside a meatpacking plant in Rapid City have now been aired, with the help of an emergency order by Supreme Court Justice Harry A. Blackmun.

But the legal difficulty may linger long after the broadcast.

Stirred by the poisoning of hundreds of people last year after they ate beef tainted with the bacteria E. coli, "48 Hours," a CBS newsmagazine, decided to examine sanitation in slaughterhouses. In December, producer Robert Currie persuaded an employee of Federal Beef Processors Inc., to wear a hidden video camera into the Rapid City plant.

After Currie showed the film to a Federal Beef employee, the company asked a state judge to bar "48 Hours" from broadcasting the videotape. The company also sued the network, claiming it trespassed on the meatpackers' property, took company property, bribed the worker, exposed the company's trade secrets, invaded its privacy, engaged in deception and encouraged employee disloyalty. CBS disputes all of the allegations.

Circuit Judge Jeff W. Davis barred the network from using the footage during the "48 Hours" segment, titled "Bum Steer." Concluding that the First Amendment did not apply because the network obtained the videotape through "calculated misdeeds," Davis ruled that Federal Beef would suffer "irreparable harm" if the tape were broadcast.

Federal Beef does business with some of the nation's major purchasers of meat – McDonald's, Wendy's and Burger King. If the fast-food giants suspected that Federal Beef runs an unclean plant, the company said, it might lose them as clients. The judge agreed, saying that he worried about the economy of western South Dakota if Federal Beef were to suffer serious financial setbacks.

The company did have something to worry about from the videotape, at least from a public relations standpoint. It showed, in some unappetizing scenes, how workers dealt with contaminated beef. The broadcast's portrayal of the conditions led Federal Beef to say it would add a libel claim to its legal claims against CBS.

In an appeal hours before "Bum Steer" was to go on the air, CBS got permission from Blackmun to use the disputed videotape; the show went on as planned on February 9. The Blackmun opinion was a stern and swift reminder to Judge Davis and to the South Dakota Supreme Court of the U.S. Supreme Court's long-standing opposition to imposing "prior restraints" on disseminating news.

"If CBS has breached its state law obligations," Blackmun declared, "the First Amendment requires that Federal [Beef] remedy its harms through a damage proceeding rather than through suppression of speech." Even if CBS broke some criminal law – and Blackmun found no evidence it had – the justice indicated it was by no means certain that prior restraint would be permitted under the First Amendment.

In fighting Davis' ban, CBS has gone to considerable lengths to show that it broke no laws and violated no one's rights. That effort, however, will have to continue as Federal Beef's lawsuit proceeds.

It is not clear that the network had the legal right to make the videotape in the first place, an issue that was not settled by Blackmun's order. CBS may pursue a formal appeal to the U.S. Supreme Court to seek a final decision on the prior restraint issue, to validate Blackmun's emergency order and its right to broadcast the tape.

The network's difficulty from here on, however, stems from the uncertain state of First Amendment protection for newsgathering techniques. Although the Supreme Court has said there must be some right to seek news in order to make the right to publish meaningful, the extent of that right must be settled case by case. Federal Beef's suit, which claims a wide array of legal wrongs, is a good example of the challenge media lawyers face over hidden cameras.

When they address the suit's allegations one by one, CBS' lawyers will have to reveal much about the network's editorial decision making processes, and ultimately may be ordered to reveal confidential sources.

Already, the network has found that the courts in Federal Beef's home state are sympathetic to the company's plight. CBS has no assurance that the judicial audience there is likely to switch its sentiments. l

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